Systemic Discrimination Cases in Education: What's Next After Disparate Impact?

## Disparate Impact Investigations to be Narrowed or Dropped The U.S. Department of Education has announced it will no longer pursue systemic race-based discrimination investigations under the disparate impact legal theory. This move may impact cases currently under investigation, potentially narrowing or dropping them. According to former federal civil rights enforcement staff, districts and states under federal investigation may see their cases affected as a result of this announcement. Disparate impact cases target policies or practices that are neutral on their face but harm Black or other historically marginalized student groups in practice. These cases are different from intentional discrimination cases, which the Trump administration will still be pursuing. The Office for Civil Rights plans to review collected evidence in Title VI cases currently under investigation to determine whether intentional discrimination occurred. ## Impact on Systemic Investigations The disparate impact legal theory was often used to reform policies and practices that unintentionally and disproportionately prevented students of color from accessing education. These systemic investigations were often triggered by an individual complaint to the department. According to education lawyer Nancy Potter, who worked for OCR between 2015 and 2019, "I would expect open cases to be closed or narrowed to their intentional discrimination issues." Districts, Potter said, should note what parts of a federal investigation OCR is closing, as some claims still may be investigated under other legal tools. Intentional discrimination cases citing statistical disparities, for example, are still fair game. While the federal government has backed away from an investigative tool that impacts broad groups of historically underserved students, some states and courts still use disparate impact even if it's not codified. ## State and Local Approaches to Disparate Impact Among the states that still use disparate impact are Washington, Oregon, New Jersey, and Connecticut, according to the National Center for Youth Law. In Oregon, for example, a state education discrimination statute prohibits acts that are "fair in form but discriminatory in operation," meaning dress codes and other policies are only lawful if they do not have a disparate impact on minority students. ## The Future of Systemic Discrimination Cases The Education Department's announcement has sparked debate about the future of systemic discrimination cases. Some argue that the disparate impact theory was used to force schools to take race as a determinative factor in how students are treated, while others see it as a necessary tool for addressing systemic inequalities. As the Education Department shifts its focus to intentional discrimination cases, it remains to be seen how this will impact the lives of students and families affected by systemic discrimination. In the meantime, districts and states under federal investigation should be aware of the potential impact of the Education Department's announcement on their cases. As education lawyer Jackie Gharapour Wernz noted, "A district receiving a closure letter should read it closely.